CURRENT ISSUES IN PUBLIC PROCUREMENT: A VIEW FROM LUXEMBOURG
Christopher VAJDA, Judge at the CJEU
2nd November 2015 - London
Organized by the Centre of European Law of King’s College London
It is a great pleasure to address the Centre of European Law of King’s College and to give this Annual
Lecture on current issues in public procurement. It is a subject of huge practical and legal
importance. The annual value of public procurement contracts in the EU is estimated to account for
approximately 17% of the GDP of the EU1. From the legal perspective, there is detailed EU legislation
both on substantive and procedural issues (remedies), voluminous case law of the CJEU and even
more so in the national courts, particularly within the UK, which never reach us in the CJEU. One of
the issues the CJEU (and indeed national courts) have to grapple with is the interrelationship
between legislation and general principles of EU law derived from the treaties. There are now two
new Directives 2014/23 and 2014/24 which, in some respects, codify the existing case law of the
CJEU but, in other respects, take a different approach. It is also an area of EU law in which I have a
particular interest and, since my arrival at the CJEU in 2012, I have had the privilege of sitting in a
significant number of public procurement cases, including the majority of such cases decided over
the past year.
In my talk I will touch both on a few substantive issues that arise in public procurement case-law,
which I will look at with particular reference to remedies also.
I THE APPLICATION OF FUNDAMENTAL PRINCIPLES OUTSIDE THE SCOPE OF THE DIRECTIVES
The first question concerns the application of Treaty fundamental principles – in particular those of
transparency and equal treatment – in cases falling outside the scope of the public procurement
directives. I would like to provide a little background to this area in order to put recent
developments into context.
The directives contain a series of positive obligations, relating to all aspects of the tender procedure,
including technical specifications, advertising requirements and award criteria. However, you will
1
Communication from the Commission to the European Parliament, the Council, the Economic and Social
Committee and the Committee of the Regions, COM(2010) 608 final/2, p.15.
1
recall that positive obligations were never intended to provide uniform and exhaustive regulation of
the field.
First category: service concessions
It is in this context that I would like to begin by mentioning the landmark 2000 judgment in
Telaustria 2. The public tender procedure in issue in that case related to a service concession for the
production and publication of telephone directories in Austria. At that time, service concessions
were excluded from the scope of public procurement directives. The Court nonetheless found that
contracting authorities concluding such contracts had to respect the fundamental rules of the
treaties, in general, and the principle of non-discrimination on the ground of nationality, in
particular. It stated that this principle implies for the contracting authority an obligation of
transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of
advertising sufficient to enable the services market to be opened up to competition and the
impartiality of procurement procedures to be reviewed.
In my view, the real interest of the Telaustria judgment lies in the fact that, whereas previous caselaw applying treaty principles highlighted negative obligations – such as the prohibition of
discrimination – a positive obligation of advertisement, deriving from a transparency requirement,
was identified in respect of contracts falling outside the scope of the procurement directives. This
treaty obligation for such contracts mirrored the detailed advertising requirements set out in those
directives, albeit in a manner far less defined.
A recent 2014 case serves, among many others, to illustrate the transparency requirement identified
in Telaustria. In Cartiera dell’Adda, 3 it was uncertain on the facts whether the contract in question
fell within Directive 2004/18, or whether it essentially concerned a concession subject to general
principles only. The Court addressed both hypotheses in its answer. At issue was the exclusion of a
tenderer for failure to comply with a requirement, stipulated in the contract documents on pain of
exclusion, to submit a declaration that a director had not been subject to criminal proceedings or
convictions, even though that omission was subsequently rectified. Drawing on earlier case-law, the
Court found that a contracting authority must comply strictly with the criteria which it has itself
established, and thus must exclude the tenderer under such conditions. This obligation was rooted
in the principle of equal treatment and its derivative, the obligation of transparency. Since those
imperatives were not only general principles of EU law but also the foundation stones of the
2
3
Case C-324/98 Telaustria and Telefonadress EU:C:2000:669.
Case C-42/13 Cartiera dell’Adda EU:C:2014:2345.
2
directive, the exclusion was considered lawful whether or not the contract in question fell within the
ambit of the directive.
Over the years since Telaustria, there have been a series of important judgments applying Treaty
principles to service concession contracts. 4 There is now Directive 2014/23/UE, which for the first
time brings service concessions within the ambit of EU legislation. A threshold of just over 5 million
euros has been set for the application of this directive5. According to the preamble6, concessions at
or above this level should be of manifest transnational interest. It remains to be seen what the
Court’s approach will be to concessions whose value falls below this threshold. I will return to this
when I look at the question of ‘cross-border’ interest.
Second category: contracts falling below the threshold set in the directives
That brings me neatly to the second category of contracts to which the Court has applied Treaty
principles, namely those falling below the relevant thresholds set in the public procurement
directives. Such was the case with the public contract at issue in Vestergaard 7 which swiftly
followed Telaustria. The Court had no hesitation in applying Telaustria to this case, in particular the
treaty obligation of transparency.
However, it is submitted that in Vestergaard the Court took a significant step forward. It is one thing
to apply treaty principles to service concessions. Although their exclusion from the scope of the
procurement directives at the time no doubt reflected a political choice, and there can be little
doubt, if important enough, that they could be of cross-border interest. But, on the other hand, it
may be assumed, as the Court has indeed indicated, 8 that the setting of value thresholds for the
application of the directives reflects, at least in part, a view that contracts below a certain value are
unlikely to attract interest from tenderers in other Member States. Absent such interest, the
fundamental freedoms guaranteed by the treaties do not apply. It therefore does not automatically
follow that general rules and fundamental principles to which concessions are subject should also
apply to public contracts below the thresholds set in the Directive.
In many cases, the Court is able to adopt a pragmatic approach to below-threshold contracts.
Essentially, it has examined whether the circumstances at issue would be permissible under the
directives. If so, it concludes that they are a fortiori not precluded by treaty obligations such as
4
For example C-231/03 Coname, C-458/03 Parking Brixen, C-91/08 Wall.
Directive 2014/23/UE, Article 8.
6
Directive 201/23/UE, Recital 23.
7
Case C-59/00 Vestergaard EU:C:2001:654.
8
Case C-16/98 Commission v France EU:C:2000:541, paragraph 44.
5
3
transparency. This is an entirely logical position. It is predicated upon the presumption that the
directives themselves are in conformity with the treaties – and therefore valid – and takes into
account that those directives lay down “strict special procedures” to which contracts falling outside
their scope are not subject. Thus, in the recent case Generali-Providencia Biztosító, which concerned
an insurance contract falling below the relevant value threshold, a tenderer was excluded because it
had previously been fined for infringements of competition law. The Court first found that such
exclusion was permitted under the relevant directive provision and concluded that it must a fortiori
be justified in the case of the contract in question. 9 Moreover, the Court pointed out, in an obiter,
that such an exclusion was also in conformity with Directive 2014/24, not yet in force at the material
time.
This reflects a more general approach of the Court in dealing with contracts outside the scope of the
directives. While emphasising the twin imperatives of equal treatment and transparency, the Court
is mindful of the margin of discretion left to Member States in areas not covered by detailed EU
regulation. When, on occasion, the Court has to examine the proportionality of a national measure
in its application outside the scope of the public procurement directives, its degree of control is
restrained. Thus, in Consorzio Stabile Libor Lavori Pubblici, 10 in respect of a procurement that also
fell below the threshold in the Directive, when asked to rule on the proportionality of a national
measure excluding tenderers who had not met their social security payments if the shortfall was
more than 100 euros and 5 % of the sums due, while the relevant shortfall for arrears of tax was
€10,000, the Court rejected arguments relating to the internal coherence of that measure and,
instead, referred to the discretion which Member States enjoyed in drawing up causes for exclusion
of tenderers in cases outside the mandatory ones provided for in Article 45(1) of Directive 2004/18.
Third category: “Type B” contracts
The third general category of public tender procedures to which the Court has applied general treaty
rules and principles relates to so-called “type B” contracts, of which I have already made mention
with regards to the applicable value thresholds.11 They include, for example, certain transport
services, hotel and leisure services, security and legal services. In Directives 92/50 and 2004/18,
these services were exempted from a large number of requirements applicable to other contracts, in
particular the obligation of advance publicity by means of a tender notice. In Commission v Ireland
9
Case C-470/13 Generali-Providencia Biztosító EU:C:2014:2469, paragraphs 34 to 36.
Case C-358/12 Consorzio Stabile Libor Lavori Pubblici EU:C:2014:2063.
11
Annex I in Directive 92/50, Annex II in Directive 2004/18 and Annex XIV in Directive 2014/24.
10
4
(An Post),
12
the Court held that the Community legislature based itself on the presumption that
contracts for such services are not, in the light of their specific nature, of cross-border interest such
as to justify their award being subject to the conclusion of a tendering procedure intended to enable
undertakings from other Member States to examine the contract notice and submit a tender. For
that reason, Directive 92/50 merely imposed a requirement of publicity after the award for that
category of services.
However, this presumption of lack of cross-border interest in the case of Type B services was
rebuttable. The Court went on to say that the special and reduced advertising arrangement,
introduced by the Community legislature for contracts relating to services coming within the ambit
of Annex I B, cannot be interpreted as precluding application of the principle of transparency
resulting from Articles 43 EC and 49 EC, in the event that such contracts nevertheless are of certain
cross-border interest. Nevertheless, the Court stated that there could be a derogation from the
application of such principle where it was objectively justified.
In An Post, the Court rejected the action on the ground that the Commission had not demonstrated
the necessary “certain cross-border interest”. Nevertheless, the judgment suggested a tension
between the procurement directives and the treaties as regards Type B services. These services,
unlike service concessions and low value contracts, fall within the scope of the directives, which
expressly exonerate them from the obligation of advance publicity of tender procedures.
Nonetheless, were they to be of certain cross-border interest, Treaty principles would apply and, in
particular, the Telaustria obligation of a sufficient degree of advertising.
This tension is illustrated in the recent case Azienda sanitaria locale n.5 ‘Spezzino’ (‘ASL’). 13 The case
concerned the provision of emergency ambulance services, which, according to the relevant Italian
legislation, was to be awarded preferentially to voluntary organisations and approved public bodies,
without prior advertising. On the assumption that the value of the medical element of the contract
exceeded that of the transportation element, which was not clear from the order for reference, this
was to be considered a Type B service. Having noted that Directive 2004/18 imposes no prior
advertising requirement for such services, the Court however went on to state that the lack of any
transparency amounts to a difference in treatment to the detriment of undertakings situated in
another Member State, prohibited under Articles 49 TFEU and 59 TFEU unless justified. In the
circumstances of the case the Court found that there was a justification for this difference in
12
13
Case C-507/03 Commission v Ireland EU:C:2007:676.
Case C-113/13 San Lorenzo and Croce Verde Cogema EU:C:2014:2440. See in particular paras 41 and 52.
5
treatment, essentially that there was a public interest justification in giving preferential treatment to
voluntary organisations such as the organisation of its public health system.
Directive 2014/24 now imposes prior advertising for services analogous to Type B services. 14 In
principle, this should ensure that the tension between the legislator’s and the Treaty’s advertising
requirements for this type of service, as it first came to light in An Post, should not recur.
II OF CERTAIN CROSS-BORDER INTEREST
Still on the subject of public contracts falling (at least partially) outside the directives, I now turn to
the issue, which I have already touched upon, of the necessity that such contracts are of “certain
cross-border interest”. The existence of such interest is a pre-requisite for EU law to apply and, as a
corollary, it defines the limits of the Court’s jurisdiction in interpreting and applying EU law.
It is fair to say that the Court has generally adopted an accommodating approach to the existence of
certain cross-border interest in preliminary ruling cases where the determination of this interest lies
in the hands of the national courts. In Coname, 15 the Court for the first time made explicit reference
to the possibility that a contract would be of interest to an undertaking located in a Member State
other than that of the contracting authority as a condition for the application of the treaty
requirements of transparency and equality of treatment. The contract in question was a service
concession for the running of a methane gas network in the commune of Cingia de’ Botti in Italy. The
Court provided some guidance as to the existence of cross-border interest by noting an absence of
“special circumstances, such as a very modest economic interest at stake”, on account of which it
could reasonably be maintained that an undertaking from another Member State would have no
interest in the concession and that the effects on the fundamental freedoms concerned should
therefore be regarded as too uncertain and indirect to warrant the conclusion that they may have
been infringed.
In recent preliminary reference cases, the Court has indicated that it would take a stricter line in
requiring the national court to provide concrete indications of the existence of certain cross-border
interest. This reflects partly the increased workload of the Court with the concomitant necessity to
enforce admissibility criteria strictly, and partly the requirements as regards the content of a
preliminary reference, as set out in Article 94 of the Court’s rules of procedure dating from 2012.
14
Such services are listed in Annex XIV to Directive 2014/24 and are governed by Article 74. According to
Article 75, tenders involving such services require either a contract notice or a prior information notice.
15
Case C-231/03 Coname EU:C:2005:487. However, the Court has taken a stricter approach in direct actions
where certain cross-border interest has to be proved before the CJEU, see Commission v Ireland, footnote 12
above, and case C-160/08 Commission v Germany.
6
Article 94 provides the Order for reference must contain either relevant findings of fact or, at least a
description of the relevant facts on which the questions are based. Explicit reference to this
provision has been made in a number of recent cases, including ASL and Generali-Providencia
Biztosító. 16
ASL was the first occasion where the Court referred to Article 94 as the relevant order for reference
said nothing on the issue of cross-border interest17. It nevertheless went on to mention the “spirit of
cooperation” between it and the national court and proceeded to examine the case on the proviso
that certain cross-border interest existed. It made reference to criteria drawn from its case-law
which indicates such interest – such as the value of the contract, place of execution, technical
characteristics, the existence of complaints from operators in other Member States – without
however applying these criteria explicitly to the facts of the case at hand.
In Enterprise Focused Solutions, 18 the Court arguably went further. The contract in question was for
the supply of computing systems and equipment to a hospital in central Romania. The referring
court assumed Directive 2004/18 was applicable and made no reference to any cross-border
interest. However, the value of the contract was little more than one quarter of the relevant
threshold, so the directive clearly did not apply. Having repeated the principles and criteria set out in
ASL, the Court made reference to the specific facts of the case, holding that, despite its low value,
the contract in question “could have certain cross-border interest” given that the case concerned
the supply of computing systems and equipment with the reference processor being that of an
international brand (Intel). Despite this seemingly liberal approach, it cannot be ruled out that the
Court will in the future declare references inadmissible for lack of concrete indication of crossborder interest.
The legislator has now sought to provide a steer, at least in respect of certain services. Recitals 114
to 117 of the new Directive 2014/24 state out the categories of services which are deemed by their
very nature to have a ‘limited cross-border dimension’, namely services that are known as services
to the person, such as certain social, health and educational services, 19 but also hotel and restaurant
services, 20 certain legal services which concern exclusively issues of purely national law 21 and a few
other services such as rescue services, firefighting services and prison services 22. The threshold for
16
At paragraphs 47 and 28 of the respective judgments.
At paragraph 47.
18
Case C-278/14 SC Enterprise Focused Solutions EU:C:2015:228.
19
Recital 114 of Directive 2014/24.
20
Recital 115 of Directive 2014/24.
21
Recital 116 of Directive 2014/24.
22
Recital 117 of Directive 2014/24.
17
7
such services which are listed in Annex XIV of Directive 2014/24 has been set in Article 4(d) at €
750,000, a higher threshold than that which applies to other services. Any contract below that value
is therefore deemed to be of ‘limited cross-border dimension’. To my mind, such a presumption goes
a long way to providing legal certainty without precluding the possibility of rebutting that
presumption in a particular case.
III DISTORTION OF COMPETITION BETWEEN PUBLIC AND PRIVATE PROVIDERS
Another issue that has arisen recently is the question of potential distortion of competition between
public and private providers, given the financial conditions under which the former may operate.
The fourth recital to Directive 2004/18 exhorts Member States to ensure that the participation of
public providers does not distort competition. Article 55 permits the rejection of abnormally low
offers on the ground of state aid provided the contracting authority first consults with the tenderer
and the latter is unable to prove that the aid in question was granted legally.
The issue came to the fore in Data Medical Service. 23 The applicant challenged the award of a
contract for processing data for quality control of medicinal products on the ground that the winning
tenderer was a public entity that had submitted an abnormally low price. The referring court had
raised doubts as to whether the sole provisions on abnormally low offers in the directive were
sufficient to prevent distortions of competition between public and private bodies and asked about
other possible “corrective mechanisms” to prevent such distortions. The Court however rejected the
idea that there could be “corrective mechanisms” other than the provision on abnormally low offers.
It pointed out that the EU legislator, while clearly aware of the issue of competition distortion, had
not provided any other mechanisms.
It is worth emphasising that Article 55 of Directive 2004/18, and its equivalent in previous and
subsequent directives, permits but does not require the contracting authority to take into account
the existence of illegal State aid. That there is a discretion and no obligation is particularly clear from
the new directive 2014/24, which introduces a limited number of circumstances in which an
abnormally low offer must be rejected, namely non-compliance in the field of EU environmental,
social or labour law. Illegal State aid is not present on this list. I would add that, in my view, it would
be impractical to expect a contracting authority to undertake a state aid analysis involving, for
example, complex issues as to whether the private investment test was satisfied, where the
Commission itself would normally require at least many months to decide.
23
Case C-568/13 Azienda Ospedaliero-Universitaria di Careggi-Firenze EU:C:2014:2466.
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IV AWARD CRITERIA
Some of you will be familiar with the case of Lianakis, 24 a case decided under Directive 92/50 where
the Court held that a contracting authority was not allowed to use as “award criteria” the tenderer’s
experience and qualifications, as those criteria related rather to the ability of the tenderer to
perform the contract and so were permissible only at the earlier selection stage. It is fair to say that
this judgment has caused difficulties in that it is often not easy to draw a ‘bright line’ between
criteria which are relevant to the award of a contract and that which are relevant to the ability of a
tenderer to perform the contract (‘the qualitative selection criteria’). This is particularly true in the
case of contracts which depend on the professional experience of the particular team.
Earlier this year, the Supreme Administrative Court in Portugal gave the CJEU an opportunity to
reconsider this issue in Ambisig.
25
The facts were simple. The contract notice stated that the
contract would be awarded to the economically most advantageous tender based, inter alia, (as to
40% weighing) on ‘the composition of the team, its proven experience and an analysis of the
academic and professional background of its members’. The contracting authority stated that this
provision was an intrinsic characteristic of the tender and not a characteristic of the tenderer.
Ambisig did not win the contract and challenged the contract notice on the basis of Lianakis. The
Court rejected this challenge for essentially two reasons. First, it distinguished Lianakis on the facts.
The unlawful provision in Lianakis related to the general experience of the tenderer and not the staff
and experience of the people making up the team that would perform the contract. Secondly, the
Court pointed out that the legislation was now different in that Directive 92/50 had been replaced
by Directive 2004/18 which provides the contracting authority with greater discretion in determining
which tender was most economically advantageous, including determining the quality of bids. The
Court recognized that many contracts may depend decisively on the professional merit of the
persons entrusted with its performance. One of the reasons the Portuguese court made the
reference was that it detected a conflict between Lianakis, Directive 2004/18 and indeed the
Commission’s proposal for a new directive replacing Directive 2004/18. Both the Court and Advocate
General were careful to answer the question by reference to the directive currently in force,
although the Advocate General had the luxury to add a post-script stating that the conclusion he
reached (with which the Court agreed) was fully consistent with the new directive which had, I quote
“the intention to clarify the rules at issue”26.
24
Case C-532/06 Lianakis and Others, EU:C:2008:40
Case C-601/13, Ambisig v Nersant, EU:C:2015:204.
26
Paragraph 90 of the Advocate General’s Opinion.
25
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V REMEDIES
The final area I wish to cover today is remedies. It is rather unusual for the EU to legislate on
remedies, as it does in the public procurement ‘remedies’ directives. The normal position is that
remedies for breach of EU law are left up to national legislation, subject to compliance with general
principles, in particular those of equivalence and effectiveness.
27
This is still the case for matters
that lie outside the current EU legislative code for remedies which is set out in the Remedies
Directive 89/665, as amended by Directive 2007/66, and covers specific situations of breach of the
public procurement rules.
The problem in the field of public procurement is how to balance sanctioning breaches of the
Directives (to ensure that Directives are obeyed), while at the same time ensuring legal certainty for
the successful tenderer who is awarded the contract and may be unaware of why there has been a
breach of the Directive by the contracting authority and who has spent money pursuant to the
award of the contract. This tension is reflected in the Preamble of Directive 2007/66. Recital (14)
provides that “ineffectiveness is the most effective way to restore competition and to create new
business opportunities for those economic operators which have been deprived illegally of their
opportunity to compete” but, at the same time, Recital (24) indicates that, in exceptional
circumstances, ineffectiveness could lead to disproportionate consequences, and Recital (26) makes
explicit reference to the legal uncertainty which may result from ineffectiveness.
Already in its original version, Directive 89/665 provided that national review procedures should
allow the possibility to annul illegal decisions, to order interlocutory measures and to award
damages. However, even with successive amendments, the directive’s provisions were not
considered entirely adequate in creating an effective judicial review system. The original version
permitted Member States to provide that annulment of a public works contract which was awarded
in violation of EU law could be ordered only in the period before the conclusion of the contract, and
that thereafter only damages could be awarded. What is more, Member States did not provide for a
minimum period between the award decision and the conclusion of the contract which would have
been necessary for an effective review procedure.
27
Case C-33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland
EU:C:1976:188.
10
It fell to the Court to attempt to fill in the gaps in effective judicial protection. Noting in 1999 that
the system allowed the contracting authority to escape review on the award decision, especially if
the contract was signed on the same day as that decision, the Court declared that Member States
were required to provide procedures allowing all interested parties to have that decision annulled,
regardless of the possibility to obtain damages. 28 In this first landmark case, another problem was
that the other tenderers had only learned of the contract concluded between the contracting
authority and the successful tenderer through the press, but the Court did not elaborate on this
point as it was not directly relevant to the question of whether an award decision should be open to
review, regardless of the possibility to obtain damages. However, in Commission v Austria the Court
then decided that complete judicial protection required an obligation for the contracting authority
to inform all tenderers of the adjudication decision and that the unsuccessful tenderers must have
sufficient time to examine the validity of that decision. This implied that a reasonable period must
elapse between the time when the award decision is communicated and the conclusion of the
contract in order, in particular, to allow an application to be made for interim measures prior to the
conclusion of the contract. 29
This case-law prompted the EU legislator to modernise the rules relating to review procedures, in
particular through the adoption of Directive 2007/66, amending Directive 89/665. It provided a
minimum standstill period of 10 days between notification of the award decision to the unsuccessful
tenderers and contract signature.
The amended directive increases judicial protection also by obliging Member States to ensure that
public contracts are declared ineffective in three circumstances. This is provided for by Article 2d(i)
of the directive and is designed, in particular, to combat the practice of awarding contracts without
prior publication of a contract notice in the Official Journal, where such publication is required by
the public procurement directives. Paragraph 4 of Article 2(d) stipulates, however, that the
obligation of ineffectiveness should be inapplicable where three cumulative conditions are met.
These are that 1) the contracting authority considers that the award of a contract without prior
publication of a contract notice is permitted under 2004/18; 2) that authority has published in the
Official Journal a notice expressing its intention to conclude the contract, and 3) the contract has not
been concluded before the expiry of a 10-day period following the publication of this notice.
28
29
Case C-81/98 Alcatel Austria EU:C:1999:534.
Case C-212/02 Commission v Austria EU:C:2004:386.
11
The exception contained in Article 2d(4), which seeks to strike a balance between sanctioning
breaches and ensuring legal certainty, was recently examined by the Court in Fastweb (N°2). 30 In this
case, the applicant disputed the re-awarding by the Italian Ministry of the Interior of a telecoms
services contract to Telecom Italia upon the expiry of its previous contract with this company, using
the negotiated procedure without prior publication of a contract notice. Although the award
decision was annulled, the regional administrative court decided it could not declare the new
contract ineffective since the conditions contained in the Italian legal provision transposing Article
2d(4) of Directive 89/665, as amended, were fulfilled. The referring court, the Consiglio di Stato,
asked whether that provision precluded a declaration of ineffectiveness even where it was
established that the conditions laid down in Directive 2004/18 for awarding without prior
publication were not in fact met. The Court held that, even though Article 2d(4) constituted an
exception which must be interpreted strictly, its terms should not be interpreted in a manner that
would deprive it of its intended effect. Rather than being governed by national law, the national
measures which could be taken were determined only according to the rules of the directive. It
would therefore be contrary to the wording and aims of Article 2d(4), as well as to legal certainty, to
declare a contract ineffective if the three conditions it contained were fulfilled. However, it was
important that the reviewing body carried out an effective review of the satisfaction of those
conditions. In order to do that, it needed to examine the reasons set out in the notice in the OJ for
proceeding without prior publication31.
The national court also asked as to the compatibility of Article 2d(4) of Directive 89/665 with the
right to an effective remedy enshrined in Article 47 of the Charter, but the Court replied that the
applicable time-limits, albeit short, did not in practice make the exercise of the rights conferred by
the EU legal order impossible or excessively difficult,
32
and that, by the exception laid down in
Article 2d(4), the EU legislature was seeking to accommodate divergent interests.
33
It also pointed
out that, after the expiry of the 10 day time limit, an action for damages was still possible. Thus, in
looking at the effectiveness of a particular remedy, regard has to be had to the overall system of
remedies.
Fastweb (N°2) therefore illustrates how the EU legislative code changes the normal position on
remedies in cases of breach of EU law since, if the consequences of breach of the obligation in that
30
Case C- 19/13 Ministero dell'Interno v Fastweb SpA EU:C:2014:2194
In Fastweb, the contracting authority had decided to proceed via a negotiated procedure without prior
publication of a contract notice.
32
At paragraph 58.
33
At paragraph 63.
31
12
case were a matter of national law, EU law will not have precluded the Italian courts from declaring
the contract ineffective.
VI CONCLUSION
In conclusion, I hope that this brief survey of some of the recent case-law has illustrated the role of
the Court not only in examining public contract awards which fall outside the scope of the public
procurement directives but also some key issues arising under the Directive and the EU remedies
Directive. However, it is equally true that the EU legislator has not remained idle but, particularly
with the new directives adopted in 2014, has codified some of the Court’s case-law while in some
areas going further than the Court had ventured. In the field of remedies, the Court’s rulings have
both served to push the legislator to review Directive 89/665 and helped to clarify the content of the
amended directive. Thus, I hope that this canter through recent public procurement case law has
illustrated the respective roles of the legislator and the Court in developing the law.
13